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Subpoena, when issued.

Subpoena, how served.

SEC. 404. The service of a subpoena shall be made by showing the original, and delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to him at the same time, if demanded by him, the fees to which he is entitled for travel to and from the place designated, and one day's attendance there. Such service may be made by any person.

Service of sub

SEC. 405. If a witness be concealed in a building or vessel, so as poena on person to prevent the service of a subpoena upon him, any court or judge, or

concealed.

any officer issuing the subpoena, may, upon proof by affidavit of the concealment and of the materiality of the witness, make an order that the sheriff of the county serve the subpoena; and the sheriff shall serve it accordingly, and for that purpose may break into the building or vessel where the witness is concealed.

Parties present
in court may
be required
to testify.

Witness to attend pursuant to subpoena.

place, to testify as a witness, but may also require him to bring with him any books, documents, or other things under his control. No witnesses shall be required to attend before any court, judge, justice, or other officer, out of the county in which he resides.

When witness must answer.

SEC. 403. The subpoena shall be issued as follows:

1st. To require attendance before a court, or at the trial of an issue therein, it shall be issued in the name and under the seal of the court before which the attendance is required, or in which the issue is pending:

2d. To require attendance out of court before a judge, justice, or other officer, authorized to administer oaths, or take testimony in any matter, under the laws of this state; it shall be issued by the judge, justice, or other officer before whom the attendance is required:

3d. To require attendance before a commissioner appointed to take testimony by a court of any other state or county, it may be issued by any judge or justice of the peace, in places within their respective jurisdictions.

SEC. 406. A person present in court, or before a judicial officer, may be required to testify, in the same manner as if he were in attendance upon a subpoena issued by such court or officer.

SEC. 407. It shall be the duty of a witness, duly served with a subpœna, to attend at the time appointed, with any papers under his control required by the subpoena, to answer all pertinent and legal questions; and, unless sooner discharged, to remain till the testimony is closed.

SEC. 408. A witness shall answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself; but he need not give an answer which will have a tendency to subject him to punishment for a felony; nor need give an answer

which will have a direct tendency to degrade his character, unless it be to the very fact in issue, or to a fact from which the fact at issue would be presumed. But a witness shall answer as to the fact of his previous conviction for felony.

subpoena, or

sworn, or

SEC. 409. Disobedience to a subpoena, or a refusal to be sworn, or Disobeying to answer as a witness, or to subscribe an affidavit or deposition when refusing to be required, may be punished as a contempt by the court, or officer issu- contempt. ing the supbona, or requiring the witness to be sworn; and if the witness be a party, his complaint may be dismissed, or his answer stricken out.

disobeying

SEC. 410. A witness disobeying a subpoena shall also forfeit to the Penalty for party aggrieved the sum of one hundred dollars, and all damages subpoena. which he may sustain by the failure of the witness to attend; which forfeiture and damages may be recovered in a civil action.

to attend may

SEC. 411. In case of failure of a witness to attend, the court or Witness failing officer issuing the subpoena, upon proof of the service thereof and of be arrested. the failure of the witness, may issue a warrant to the sheriff of the county to arrest the witness and bring him before the court or officer where his attendance was required.

witness confined

SEC. 412. If the witness be a prisoner, confined in a jail or prison Examination of within this state, for any other cause than a sentence for felony, an in jail. order for his examination in the prison upon deposition, or for his temporary removal and production before a court or officer for the purpose of being orally examined, may be made, as follows:

1st. By the court itself, in which the action or special proceeding is pending:

2d. By a judge of the supreme court, district court, or county judge of the county where the action or proceeding is pending, if before a judge or other person out of court.

examination,

SEC. 413. Such order can only be made upon affidavit, showing the Order for such nature of the action or proceeding, the testimony expected from the how made. witness, and its materiality.

how to be taken.

SEC. 414. If the witness be imprisoned in the county where the Examination, action or proceeding is pending, and for a cause other than a sentence for felony, his production may be required. In all other cases, his examination, when allowed, shall be taken upon deposition.

ed from arrest.

SEC. 415. Every person who has been in good faith served with a sub- Witness privilegpœna to attend as a witness before a court, judge, commissioner, referee, or other person, in a case where the disobedience of the witness may be punished as a contempt, shall be exonerated from arrest, in a civil action, while going to the place of attendance, necessarily remaining there, and returning therefrom.

Arrest of a witness to be void.

No action to obtain a discovery allowed.

Party to action may be examined.

Testimony of party may be rebutted.

SEC. 416. The arrest of a witness contrary to the last section shall be void; but an officer shall not be liable to the party for making the arrest in ignorance of the facts creating the exoneration, but shall be liable for any subsequent detention of the party, if such party claim the exemption and make an affidavit stating:

1st. That he has been served with a subpoena to attend as a witness before a court, officer, or other person; specifying the same, the place of attendance, and the action or proceeding in which the subpoena was issued; and,

2d. That he has not been thus served by his own procurement with the intention of avoiding an arrest:

3d. That he is at the time going to the place of attendance, or returning therefrom, or remaining there in obedience to the subpoena. The affidavit may be taken by the officer, and shall exonerate him from liability for discharging the witness when arrested.

CHAPTER III.

OF THE EXAMINATION OF PARTIES TO AN ACTION OR PROCEEDING, AND
OF PERSONS FOR WHOSE IMMEDIATE BENEFIT SUCH ACTION OR PRO-
CEEDING IS PROSECUTED OR DEFENded.

SECTION 417. No action to obtain a discovery under oath, in aid of the prosecution or defence of another action or proceeding, shall be allowed, nor shall any examination of a party be had on behalf of the adverse party, except in the manner prescribed by this chapter.

SEC. 418. A party to an action or proceeding may be examined as a witness, at the instance of the adverse party, or of any one of sev eral adverse parties; and for that purpose may be compelled, in the same manner, and subject to the same rules of examination as any other witness, to testify at the trial, and he may be examined on a

Penalty on party to action refusing to testify.

When party may be examined on his own behalf.

commission.

SEC. 419. The examination of a party, thus taken, may be rebutted by adverse testimony.

SEC. 420. If a party refuse to attend and testify at the trial, or to give his deposition before trial, or upon a commission when required, his complaint, answer, or reply may be stricken out, and judgment be taken against him; and he may be also, in the discretion of the court, proceeded against as in other cases for a contempt.

SEC. 421. A party examined by an adverse party, as in this chapter provided, may be examined on his own behalf in respect to any matter pertinent to the issue. But if he testify to any new matter not responsive to the inquiries put to him by the adverse party, or necessary to explain or qualify his answer thereto; or to discharge,

when his answer would charge himself, such adverse party may offer himself as a witness on his own behalf in respect to such new matter; and shall be so received.

SEC. 422. A person for whose immediate benefit the action is pros- Examination of party for whose ecuted or defended, though not a party to the action, may be examin- benefit action is prosecuted, etc. ed as a witness, in the same manner, and subject to the same rules of examination, as if he were named as a party.

SEC. 423. A party may be examined on the part of his co-plain- Examination of co-plaintiff or tiff or a co-defendant; but the examination thus taken shall not be co-defendant. used on behalf of the party examined, except as against the examin

ing party.

CHAPTER IV.

ON

AFFIDAVITS.

whom to be

SECTION 424. An affidavit to be used before any court, judge, or Affidavits, before officer of this state, may be taken before any judge or clerk taken. of any court, or any justice of the peace, or notary public in this

state.

out of state.

SEC. 425. An affidavit taken in another state of the United States, Afidavits taken to be used in this state, shall be taken before a commissioner appointed by the governor of this state to take affidavits and depositions in such other state, or before any judge of a court of record having a seal.

in a foreign

SEC. 426. An affidavit taken in a foreign country to be used in Affidavit taken this state, shall be taken before an ambassador, minister, or consul of country. the United States, or before any judge of a court of record having a seal in such foreign country.

affidavits taken

SEC. 427. When an affidavit is taken before a judge of a court in Certificate to another state, or in a foreign country, the genuineness of the signa- out of state. ture of the judge, the existence of the court, and the fact that such judge is a member thereof, shall be certified by the clerk of the court under the seal thereof.

CHAPTER V.

OF DEPOSITIONS TAKEN IN THIS STATE.

may be taken by

SECTION 428. The testimony of a witness in this state may be When testimony taken by deposition in an action at any time after the service of deposition. the summons or the appearance of the defendant; and in a special proceeding, after a question of fact has arisen therein, in the following cases:

1st. When the witness is a party to the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended:

Either party
may attend such
examination.
Deposition, how
taken, etc.

2d. When the witness resides out of the county in which his testimony is to be used:

3d. When the witness is about to leave the county where the action is to be tried, and will probably continue absent when the testimony is required:

4th. When the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend.

Either party may take depositions

SEC. 429. Either party may have the deposition taken of a wit

on giving notice. ness in this state, before any judge or clerk, or any justice of the

peace, or notary public in this state, on serving upon the adverse party previous notice of the time and place of examination, together with a copy of an affidavit, showing that the case is one mentioned in the last section. Such notice shall be at least five days, and in addition one day for every twenty-five miles of the distance of the place of examination from the residence of the person to whom the notice is given, unless for a cause shown, a judge, by order, prescribe a shorter time. When a shorter time is prescribed, a copy of the order shall be served with the notice.

SEC. 430. Either party may attend such examination and put such questions, direct and cross, as may be proper. The deposition, when completed, shall be carefully read to the witness and corrected by him in any particular, if desired; it shall then be subscribed by the witness, certified by the judge or officer taking the deposition, inclosed in an envelope or wrapper, sealed, and directed to the clerk of the court in which the action is pending, or to such person as the parties in writing may agree upon, and either delivered by the judge or officer to the clerk or such person, or transmitted through the mail, or by some safe private opportunity; and thereupon such deposition may be used by either party upon the trial, or other proceeding, against any party giving or receiving the notice, subject to all legal exceptions. But if the parties attend at the examination, no objection to the form of an interrogatory shall be made at the trial, unless the same was stated at the time of the examination. If the deposition be taken by the reason of the absence or intended absence from the county of the witness, or because he is too infirm to attend, proof by affidavit or oral testimony shall be made at the trial that the witness continues absent or infirm, to the best of the deponent's knowledge or belief. The deposition thus taken may be also read in case of the death of the witness.

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